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The superior federal and state tax authorities discussed the following greatly condensed situation: A U.S. lessor leases a lease item (e.g., streetcars) long-term from the domestic owner (so-called main lease contract, 1st and 2nd level) often using an intermediate foreign company (with seat in the Netherlands or the Cayman Islands). . .  

There still seems to be confusion as to what leases will qualify as a true lease for tax purposes. Recently, the Georgia NVLA (National Association of Vehicle Lessors) chapter asked me to get involved in an issue with a Georgia CPA who was telling his lessee business clients that an open-end lease would not be treated as a lease on the lessee's tax return. He was not aware of the TRAC clause rules and mistakenly advised these lessees that they would have to depreciate the actual cost of the unit and take an interest expense deduction based on part of their lease payment. . .  

Characterization of Lease Transactions for United States Federal Income Tax Purposes The issue of whether a transaction which purports to be a lease will actually be recognized by one so as to allow the lessor to receive the tax benefits of ownership, principally the depreciation allowances associated with the equipment, is governed by a series of Internal Revenue Service ("IRS") pronouncements, case law and federal statutory law. Because the issue will come up in the first instance upon a tax audit by the IRS, the IRS opinion on leasing needs to be examined first.  

One of the benefits to both you and your vendors and your lessees that accrue from you marketing partnership program is that you have the willingness and ability to create and deliver lease structures that many funding sources would prefer to avoid. Most of your leasing transactions (90-95%) are pretty straight forward, basic transactions with even monthly rentals. . .  

The Regulatory/Supervisory Process Leasing regulation/supervision generally involves a three-part process: 1. Reports 2. Review and Audit 3. Penalties Implicit in this process is a comparison to a minimum set of standards, known as prudential norms. As the standard of measurement, they will be discussed first. . .  

How Leasing Gets Regulated Licensing of Lease Activity A distinction must be made between licensing and regulation/supervision. Licensing is the process by which permission to engage in the leasing business is obtained. It may just a simple registration of the company that will be engaged in the activity, with no need for special permission or other approval process, or it may involve a review of an application on the merits. . .  

Licensed and/or Regulated Non-bank Financial Institutions Non-bank financial institutions (NBFIs) are by definition entities that provide financial services without being a bank but that are still licensed and/or regulated by the authority for banking supervision, usually the central bank. Typical NBFIs include bank-operated subsidiaries, finance companies, merchant banks, insurance companies, pension funds, factoring companies, pawn shops--and lease companies. . .  

Who Gets Regulated Authorized Leasing Entities There are basically five types of lessors: 1) banks which engage in leasing directly (i.e., simply as a part of their routine banking business); 2) banks which engage in leasing indirectly (i.e., through a subsidiary or majority-owned affiliate); 3) licensed and/or regulated non-bank financial institutions; 4) regular (and unregulated) companies or other standard business entities; 5) divisions or subsidiaries of manufacturers and suppliers who provide leasing of their own products. These different types of entities present different licensing and supervision issues.  

The Definition of Finance Lease for Regulatory Purposes Since only financial leasing should be regulated, the contours of the regulatory landscape will be determined by the definition of what constitutes a finance or financial lease. The two most distinguishing and relevant characteristics of a finance lease are that:  

Introduction Leasing is most commonly supervised and regulated* in emerging markets. In the most mature leasing markets, such as the United States and the United Kingdom, leasing is completely unregulated. Of course, the quantity and quality of supervision will vary from country to country, ranging from the slight to the substantial. For example, Korea has heavy regulation. Germany is unregulated at the moment (but the EC Banking Directives may soon change that). . .  

 

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